Ruling endorsing proactive judicial role positive

A recent Superior Court of Justice decision calling the traditional judicial role as the passive receiver of evidence “antiquated” serves as a useful guide for working toward efficiency while still maintaining fairness, Toronto family lawyer Brian Ludmer tells Law Times.

The case involved an appeal from a custody case which prompted a consideration by Campbell of the proactive role family law judges adopt in their role as seekers of the evidence, reports the legal publication. In the ruling, Campbell referred to the traditional role of judges as passive receivers of evidence as opposed to those who are more active.

The traditional approach appears to be shifting, suggested Campbell.

“It would appear that more and more family law judges have become impatient with the glacial speed of some counsel (and especially with self-represented litigants) who decided that the trial is the venue within which to examine each and every aspect of their own/ their client’s pre-trial life. . . . I suggest that over the last fifty years the ‘precise line of demarcation’ of the ‘right to intervene’ has shifted significantly away from non-intervention to one of much more intervention,” says the decision.

Ludmer, of LudmerLaw, applauds the ruling, though he says it raises some concerns.

“It’s an extremely well-written decision where all the leading cases have been canvassed and all the principles laid out,” he tells Law Times.

But, he says, “Even if interventions are well-intentioned, it can be a bad experience for counsel. You may have a certain line of questions designed to position the witness. Counsel may wish to build the groundwork in a strategic, tactical plan of approach. If the judge intervenes at the wrong moment, it can inadvertently affect the way you wanted to approach it.

“Parties have a certain image of what the judge should do. Even if it’s not bias, litigants need to have the appearance of fairness.”

Ludmer believes there are alternatives to constant interventions, such as those seen in Van Wieren.

“If there are certain things that the judge doesn’t understand or is struggling with, there is a right way and a wrong way to respond,” Ludmer tells the legal publication. “Instead of direct intervention, the judge directs comments to counsel. If that might tip the witness off, he can excuse the witness.”

In cases where the witnesses are not co-operating, Ludmer suggests it’s appropriate for the judge to reframe a question and direct them to answer it.

“I’ve seen it done very effectively by experienced judges,” he tells Law Times. “That would not be usurping the role of counsel and can be very helpful, but if they are taking over a line of questioning rather than letting counsel do it, there is a very fine line.”

What’s clear, says Ludmer, is that the family law system could benefit from fewer delays.

The pace of the trial needs to move ahead efficiently and the complex issues in many cases are beyond self-represented litigants, he says.

“There is a trend toward more direction. With self-represented parties, it’s more visible but it should not raise any issues of intervention or bias. Judges are not supposed to argue the case on behalf of the self-represented litigant. . . . This case is a great guide for working toward efficiency while still maintaining fairness.”